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The Flunker:

The Bar Examinations and the


Miseducation of the Filipino
Lawyer
Florin T. Hilbay*
When we came, they were like a priesthood
that had lost their faith and kept their jobs.
They stood in tedious embarrassment
before cold altars. But we turned away
from those altars, and found the minds
opportunity in the hearts revenge.
- Roberto Mangabeira Unger

In the lobby of the U.P. College of Law is an inscription of the law schools
mission statement, taken from a speech delivered by United States Supreme Court
Justice Oliver Wendell Holmes, Jr. where he says: The business of a law school is
not sufficiently described when you merely say that it is to teach law and make
lawyers; it is to teach law in the grand manner, and to make great lawyers.1 I take
it that the Supreme Court and law schools in any country would consider it a decent,
if possibly a bit presumptuous, statement of the general goal of legal education. Of
course, the terms great and grand are what is commonly referred to as opentextured words, susceptible to a multitude of meanings and pliant to the demands of
the interpreter. Nonetheless, many would agree that they connote characteristics
worth embracing as institutional objectives. Indeed, it could well be the very
vagueness of such terms that qualify them for, more or less, universal acclaim. At
the same time, it is precisely such quality that makes any description of greatness
and grandeur an ineluctably normative enterprise.
My task in this Essay is to present a set of normative arguments favoring an
institutional arrangement for law schools that focuses on two specific proposals for
*

Assistant Professor, University of the Philippines, College of Law. A.B., Ll.B., Ll.M (Yale Law School). Ranked
1st in the 1999 Bar Examinations.

OLIVER WENDELL HOLMES, The Use Of Law Schools (Speech delivered before the Harvard Law School Association
at Cambridge, Mass., 5 November 1886).

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reforming the bar examinations in this country: first, the abolition of the bar
topnotcher tradition, and, second, the substantial reduction of the number of bar
examination subjects. These are proposals that require no major changes in the
way the Supreme Court conducts the bar examinations (and would even reduce the
expense in taking and supervising them) but which, as I argue below, will transform
the conditions (and therefore the quality) of teaching and learning in law schools
towards the conception of law teaching and lawyering that could possibly comply
with the Holmesian ideal. They are necessary, though non-sufficient, conditions.
These proposals constitute a pair, their effects supplementing each other. The more
general aim is to show that radical results need not always be accompanied by massive
changes.

The Spectacle
The bar examinations are a rite of passage to the business monopoly that is
the legal profession. Every September, the public is treated to a spectacle of thousands
of law graduates from all over the country trooping to a test center to try their
skillsand luckat the licensure examination conducted by the Supreme Court. It
has become a unique, national cultural experience for both spectator and gladiator.
For four Sundays of that month, from 8 a.m. to 5 p.m., prospective lawyers take
written examinations in Political Law, Labor Law, Civil Law, Taxation, Commercial
Law, Criminal Law, Remedial Law, and Legal Ethics.2 Six months later, the Supreme
Court announces the list of successful examinees that ranges between fifteen and
forty percent of all test-takers. The tradition continues for the next few days when
the bar topnotchers get interviewed and asked about their plans for the future and
how they could solve the problems of the nation. Meanwhile, it is parties galore for
everyone who passed, while those unfortunate not to make the grade fade into sadness
and think through the possibility of taking another set of exams the next September.
I would like to subject this traditionthe bar examinations, the institutional
practices that surround it, and the myth system it has engenderedto a discourse of
consequences. It should be a matter of special interest that this set of exams is
viewed as some sort of neutral space for testing the competence of law students
preparatory to their practice of law, whatever that may mean.3 It is not. The
trope that the bar examinations function as a filtering mechanism that weeds out
those competent to practice from those who are not, and no more than that, suffers
from severe under-determination. While the bar examinations, especially considering
the low passing rates at the national level, naturally have the effect of reducing the
number of people qualified to enter the legal profession, they also have collateral
effects on many other aspects of law and lawyering, from the kind of law schools
that are able to thrive in the cut-throat competition over tuition money to the character
of legal reasoning that lawyers employ in their trade. Furthermore, the saliency of
2

RULES OF COURT, Rule 138, sec. 9.

See Cayetano v. Monsod, G.R. No.100113, September 3, 1991, 201 S.C.R.A. 210 (1991).

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the bar examinations in law schools essentially define what it means to practice law
and be a lawyer to the extent that they condition the law students, the law faculty,
and the society at large to follow a basket of expectations that are not only
misdescriptive of the very rhetoric employed by the profession to describe its social
tasks but are also ill-adapted for the politics of transformation that progressive
problem solving requires.

The Miseducation Of The Bar


The authority of the Supreme Court to regulate entry (and exit) to the legal
profession rests on innocuous-sounding procedural control over the admission to
the practice of law.4 No applicant shall be admitted to the bar examinations unless
she has satisfactorily completed the following courses in a law school or university
duly recognized by the government: civil law, commercial law, remedial law, criminal
law, public and private international law, political law, labor and social legislation,
medical jurisprudence, taxation and legal ethics.5 Any person heretofore duly
admitted as a member of the bar, or hereafter admitted as such in accordance with
the provisions of this rule, and who is in good and regular standing, is entitled to
practice law.6 This procedural control over the bar examinations, though superficially
operating as a quality control mechanism, effectively dictates the occupation of law
teachers and students in relation to what to teach, how to teach, and how to study
law. I am not making a doctrinal argument that this authority intrudes into the
academic freedom of law schools; instead, I am putting stress on this authority as
the dominant constructor of the Filipino legal consciousness.
First. The number of bar examination subjects is simply staggering. This is
worsened by the fact that, in reality, each bar examination subject is a conglomeration
of related courses. Political law is not simply the first year, first semester course
described in the law school curriculum; it is actually political law, constitutional law,
administrative law, public officers & election law, municipal corporations law, and
international law. Civil law covers all areas of the Spanish Civil Codepersons and
family relations, property, succession, obligations & contracts, special contracts
and in some cases, even special commercial laws. Remedial law covers civil and
criminal procedure, evidence, and special proceedings.
This is a shotgun approach to legal knowledge, requiring as a measure of legal
competence that the law student study almost all the traditional areas of law for
purposes of the bar, with the hope that they will become useful to all lawyers in
whatever enterprise of law they engage in. While a broad perspective of law is, of
course, desirable, the fact that this policing of legal knowledge is done through the
bar examinations means that the students grasp of the constellation of legal materials
4

CONST., ART.VIII, sec. 5, par.5.

RULES OF COURT, Rule 138, sec. 5.

RULES OF COURT, Rule 138, Sec. 1.

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will inevitably be superficial, limited to the memorization of trite canons. This baroriented approach to legal learning inhibits the study of the political consequences
of legal materials; and ultimately, what students learn is knowledge in parcels, making
them unaware of how what they imbibe connects to larger patterns in the movements
of ideas.
The number of bar examination subjects required by the Supreme Court has
a direct impact on the flexibility of all law schools in matters of curriculum design
and on the kinds of law teachers demanded by the system. Because law schools are
left with no choice but to comply, their curriculum is reduced to the very same
subjects required to pass the licensure examinations, with a sprinkling here and
there of some elective courses to qualify for a minimal standard of scholarliness.
There is an obvious correlation between what teachers and law students can teach
and learnincluding how teachers teach and students learnand the number of bar
subjects required by the Supreme Court. Every bar subject is a mandatory subject,
even if only because law schools, both public and private, cannot afford not to teach
such subjects that might be asked in the bar examinations, lest they end up bearing
the brunt of complaints from law students, parents, and relatives for not teaching
such courses and depriving them of the opportunity to pass the bar examinations.7
The result is that law schools end up tying both the student and the law teacher
to the constraints and demands of these examinations. Legal education becomes
studying in order to pass the bar, and law schools, bar-type. To give an example,
the first year curriculum in the University of the Philippines tracks almost exactly
the requirements of the bar examinations: for the first semesterpolitical law, persons
& family relations, legal research, legal method, and criminal law; for the second
semesterconstitutional law, obligations & contracts, criminal law, legal theory, and
legal ethics. Except for legal method (or statutory and constitutional interpretation)
and legal theory, which are considered minor subjects (for purposes of the bar),8 all
these subjects are bar examination courses. The standing policy in the U.P. College
of Law, an institution that claims to have a progressive tradition, is to prohibit first
year law students from taking elective courses. The story is basically the same in the
sophomore year.
The sheer number of bar examination subjects means that, for the most part,
the four years of legal education will be devoted to preparations for the bar
examinations, the first three years being the initial encounter with the bar subjects,
and the last year being spent on the bar review itself. Later on, I will discuss the
other pernicious effect of this problemthe quality of teaching and learning in law
schools. At present, the point I would like to make is simply that the kind of course
offerings law schools provide is affected by the bar examinations because these
7

Of course, private law schools have little incentive to complain. Most of them measure their tuition fee on a per
unit basis.

As anyone who has studied abroad will confirm, these two subjects are probably the most important and deeply
interesting of the courses offered in law schools.

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subjects crowd out other possible course offerings, especially those unrelated to the
bar, such as: how law specifically operates in the provinces and cities where the law
schools are situated, distributive justice, reproductive rights, political action and
law, comparative legal studies, postcolonial legal theory, the impact of organized
religion and other forms of god-belief on Philippine society, etc. The requirements
of the bar examinations are a direct command for law schools to become bar-oriented,
preventing them from using law as a means of problematizing the larger questions
law students and law teachers face in a very complex legal environment operating in
a society conditioned by massive contingencies. One should realize that every unit
allotted for a bar subject is time away from the study of another subject, one which,
though not necessarily relevant for the bar examinations, might actually better
prepare the law student for the kind of lawyering present society demands of her
and which she might, ceteris paribus, actually choose. The present rule mandating the
study of so many bar examination subjects effectively transforms intelligent young
Filipinos into zombies walking along the corridors of law schools memorizing
voluminous texts in order to pass bar examination subjects. It means that, for the
most part, these people will spend five years of their lives just preparing for a test of
minimum skills.
Second. The crowding out by bar examination subjects of other possible course
offerings explains to a large extent the continuing atheoretical and un-empirical
nature of legal education in the Philippines. I am referring here to the elective
courses that usually comprise the non-bar review subjects that could be taken up in
the second, third, and fourth year of law school. One can glance at the curriculum of
any random law school inside and outside Metro Manila and immediately notice the
striking identity of these curriculaall of them are tailored after the bar
examinationsand the dearth of alternative courses that could supplement the highly
dogmatic teaching in the core subjects.
The lack of focus on elective subjects, where law and courses may be taught
and learned, is evidence of the heavy reliance of the law schools on the bar
examinations as the full measure of academic competence of students and professors.
This is in stark contrast to the kind of legal education in many other law schools
outside the country, where the study of law is dedicated to the teaching of a host of
elective and/or seminar courses, with the core subjects as introductory materials
that allow students a working knowledge of mainstream legalese and policy issues.
In Yale, for example, only the first semester, first year courses are required courses.
After that semester, all other courses, including some subjects covered by the bar
examinations, are offered as electives. In fact, bar examinations are purely personal
undertakings of law students because many American law schools do not even care
whether their graduates take the bar examinations or simply assume that they are
more than prepared for the requirements of the bar examinations after having gone
through a much more intellectually challenging law school experience. Here at home,
the highlight of the first semester is the so-called bar operations, where lots of time,
money, and parochial pride of the different law school communities are spent on
ensuring their law students do well in the bar examinations.
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The presence of these elective courses is crucial to providing both teachers


and students a deeper understanding of fundamental legal issues and processes insofar
as they allow opportunities for an out-of-the-box approach to the study of law, a
taste of the avant-garde, and a chance to be politically relevant. Law in the second
half of the twentieth century has become inter-disciplinary and empirical, relying on
many different areas of knowledge as basis for viewing legal relations and providing
legal solutions. The old scholars known for specializing in the traditional categories
of lawconstitution, procedure, torts, contracts, etc.are now being replaced by
legal scholars who simultaneously study the same subjects from the perspective of
history, economics, sociology, psychology, literature, anthropology, etc. Modern
legal studies have therefore turned away from the dry formalisms of doctrine or the
mindless study of rules and towards inter-disciplinarity, where law becomes indebted
to the insights of the other sciences. This trend past formalist legal studies has
allowed legal education to keep abreast and take advantage of advances in other
fields of knowledge, providing the study of law a constant stream of fresh perspectives.
Legal education in the Philippines, on the other hand, has retained the vestiges
of its Spanish colonial heritagedoctrinal, memory-based, hierarchical. This is evident
in the outlines of law teachers and the kinds of books and articles, if any, that they
publish. While three centuries of colonial conditioning may have something to do
with this, a large part of the responsibility can be attributed to the failure to reform
the bar examinations to conform with the demands of modern legal education. So
long as the bar examinations remain a brooding omnipresence in the law schools,
law teaching will continue to be tailored towards making law students simply passing
the bar. Those who teach the craft will limit themselves to cases and codals, divorcing
law from the task of social criticism and transformative politics; they will continue
to demand the memorization of doctrine and trite canons, with recitation cards and
the clean table approach as their tools of enforcement; they will impose hierarchy
by continually perverting the method of Socratesrelishing the emptiness of such
titles of worship like sir, madam, or the professorand promoting the failed
projects of the old system while paying lip service to the rule of law. So long as legal
education remains hostage to the bar examinations, the old scholars will remain
collators of received knowledge, updating their old files with new cases and codals,
and having little incentive to create new understandings and challenge existing
settlements. And the young ones will follow in their footsteps.
Third. The structure of the bar examinations assumes an overwhelming bias
in favor of a specific kind of competencethe jack of all trade, master of none,
doctrinal lawyer. What is hidden in, and thus an assumption of, the bar examination
system is the answer to the central question: what kind of skill is being tested and
therefore incentivized? Viewing the publicity generated by this annual event, one is
tempted to think that the bar examinations are set apart from other national licensure
exams (like that for driving) or that it is qualitatively different from, say, the national
medical exams. But they really are not. The bar examinations are essentially exercises
in memory retrieval even if they are essay-type and requiring, superficially, some
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amount of reasoning. They are also about good and fast handwriting, intelligent
test-taking, and massive doses of fortuity.
The bar examinations are a test of minimum skillsa mix of doctrinal
manipulation and memory workand what they examine is whether a law graduate
is able to hurdle a threshold of competence (for which no objective test is possible)
which, when surpassed, enables the new lawyer to use and develop her tools as a
starting professional. But it doesnt say anything more about the test-taker, or at
least, nothing much. This is because the bar examinations are nothing more than a
national quiz bee on statutes and decided cases.
This bias in favor of legal omniscience goes against the grain of specialization.
Law is such a diverse field that it is impossible to expect everyone to be well versed
even in just some of the different major areas. Compelling law students to study a
wide array of the categories of law prevents them from picking and choosing those
areas of law that really interest them. Thus, instead of law students being able to
design their future professional lives in accordance with the kind of vision they have
for themselves and use they want to make of whatever legal skills they have acquired,
they are homogenized into bar junkies for at least five years of their lives, the pride
of their learning being their ability to rattle off chunks upon chunks of statutory
provisions and doctrines off the top of their heads. Homogenized legal education
means that law schools will churn out thousands of students with just passable
knowledge of pre-selected categories of law, and with little capacity to engage in
critical argumentation or advocacy. The unbelievable amount of memory work
required to study bar examination subjects means that the dominant legal structure
is burned into the consciousness of law students, immersing them in the system and
providing them little opportunities to question its assumptions.
The bar examinations ensure that legal education will be training for the
mainstream and its products the unwitting tools of present social arrangements,
having minds full of rules and eyes shrouded by doctrine. Legal education today is
training for soldiery; it is the systematic disempowerment of otherwise intelligent
human beings for the task of social transformation and committed political action.
It is a tool that disables law students for policymaking, condemning them to
commodification and transforming their purpose from agents of justice to merchants
of legal service.
There are a lot of areas of law that could interest different law students and,
hopefully, teachers as wellcopyleft, corruption and law, constitutional reform,
identity politics, cyberlaw, statutory reform, socialism, technology and law, evolution
and law, barangay justice, environmental law, indigenous law, culture and law, etc.
and allow them to develop political commitments and a concrete sense of justice,
values that are very difficult to instill if law schools are forced into teaching mostly
bar subjects. In some law schools outside the country, for example, students are
allowed, every term, to propose law-related subjects through credited reading groups
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supervised by law professors the students themselves have selected. These sessions,
along with elective courses, are actually forums where students and faculty of similar
interest can build lasting communities that could form the basis of more organized
and sustained advocacies. These, in addition to the elective courses, provide both
students and teachers avenues to tinker with different specialized fields and develop
the scholarly outlook essential to the development of a normative perspective of
law.
The bar examinations are also one of the reasons why law schools have not
developed into centers for promoting local justice. The national character of the
bar examinations and the amount of everyday attention they require also mean that
the productive juices of law teachers and students will be difficult to channel towards
engaging more domestic concerns like local crime management, certain problems
with local ordinances, local politics, environmental management, zoning regulations,
local housing problems, etc. The bar-oriented structure of law schools guarantee
that the high priests of the legal system will remain encamped in the law libraries,
spending years of their lives in a state of social detachment, insensitive to the outrage
of the moment.
Fourth. It is easy to consider the Supreme Courts practice of announcing bar
topnotchers as a harmless tradition, with special note on the fact that topnotchers,
in general, seem to have had more impactgood and badthan others in their
professional as well as public lives. But even if doing very well in the bar examinations
signal strong potential for success, however defined, I wonder what benefit it would
do to the public if it knew such statistics other than to satisfy its craving for another
bit of fact; for this fact comes at a steep price for legal education. The topnotcher
tradition is responsible for the pervasive public misconception that bar examination
performance is a, if not the, polestar of legal excellence. Indeed, many lawyers and
law students believe that the measure of a law schools academic strength is in its
ability to land bar topnotchers along with a high passing average for all others who
do not make it to the magic ten.
I am highlighting an important relationship between the bar examinations (as
well as other entry-level examinations) and this fixation with going beyond passing
the bar. This fixation is worth interrogating not simply for its novelty but also,
more importantly, because of its ability to re-define the purpose of the bar
examinations. The argument to be made is that there is a conceptual tension in
having a qualifying test that honors topnotchers. This tension is intense considering
that lawyering is such a diverse field and the opportunities for applying as well as
discovering legal know-how is almost infinite. The bar examinations only serve to
qualify the new lawyer to do anything law-related, from practicing the many areas of
law to teaching, judging, administering. This makes it all the more surprising why
an entry-level examination for such a diverse field as law is in the business of creating
a public hierarchy among all those who passed. This matter has nothing to do with
some demand for egalitarianism; it has everything to do with relieving the tension
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between a test of minimum skills and the bar topnotcher tradition. The result of
this tension is a bar examinations scheme that suffers from an identity crisisit does
not know what its really for. On the one hand, a licensure exam is one that allows
equal entry for the qualified; the other, it is a test of some vague potential. The
highlighting of this identity crisis in the bar examinations provides a powerful insight
into the incentive mechanisms that drive the modern day law school.
The bar topnotcher is a powerful symbol, serving as a proxy for academic
achievement and an indicium of professional success. It is a symbol that creeps into
the law school, entering the classroom and inhabiting the minds of teachers and
students. It is the annual dream of law school deans and alumni to produce this law
student sui generisso much so that they even give monetary rewards and bar review
allowances for potentials and achievers. The products are law schools that are not
only compelled to teach bar examination subjects but likewise motivated towards
teaching in a way that will create future bar topnotchers.
The unfortunate consequence is that the teachers outline will be exhaustive,
covering all cases and statutes required by the bar examinations; classroom interaction
will be about re-citations, the regurgitation of decided cases and the chanting of
memorized information; the prized student possessions will be the case digests, the
codals, and, of course, the ubiquitous highlighters; and the greatest skill of both
teacher and student: the power to abuse logic. The students and teachers, instead of
looking at their society and how law is able to affect everyday lives or how certain
institutions have captured the power to create legal meaning, direct their eyes on
the SCRA, searching for doctrinal consistency or distinction, looking for meaning in
commas and conjunctives. The students will not read the newspapers and will find
no time for science, philosophy or art, knowing fully well that their daily existence
depends solely on surviving their teachers attacks, those psychological harms that
could only be parried by mouthing doctrine. This is nothing less than training for
passivity in the face of atrocity. Legal learning as training for doctrine means that
technicians of the legal system, the so-called practitioners, will thrive in law schools,
teaching their craftthe ability to grease the systemas the consummate legal skill,
and the masters of our excuse for a legal academy, the bar reviewers.

The Re-Creation of Law Schools


Now for the practical side. I have stated earlier that legal reform need not be
expensive; does it require a lot of administrative creativity. In fact, the proposals
that I offer here are discounting measures, requiring only open-mindedness and the
political will to improve an otherwise perverse situation. They also do not come at
a price, at least for the Supreme Court, and can even be viewed as cost-reduction
methods.
The Supreme Court should reduce the number of bar examination subjects
by one-half, leaving political law, remedial law, civil law, and ethics as the only bar
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subjects. It could further lessen the load of bar examinees by limiting the scope of
these bar examination subjects. For example, political law may be limited to the
first year courses in constitutional law. Civil law could further be reduced to persons
& family relations and obligations & contracts. Remedial law may be limited to the
basics of civil and criminal procedure.
In addition, the Supreme Court should do away with the practice of announcing
bar topnotchers. All the Court needs to do is to publish, without distinction, the
names of those who passed the bar exams. It may, for purposes of informing every
bar examinee of how she fared in the different subjects, send a list of the subjects
where she passed, without informing her of the actual scores she obtained. If the
Court does not look for bar topnochers, no one will be found. A pass or fail
system is sufficient enough for purposes of communicating to the public who may
practice and who may not.
It should be pointed out that the reduction of the bar examination subjects
does not necessarily result in an easier bar examination or a higher national passing
average. Indeed, if the Court is truly determined to measure competence through
the bar examinations, it could easily make the reduced bar examinations more
intellectually challenging, if not politically relevant, and there is an infinite number
of ways to do this. Even then, however, that the number of bar examination subjects
will have been reduced will not diminish the improvement that can be made possible
through the greater autonomy of law schools to design a distinctive curriculum and
a license for law teachers to move away from the traditional law subjects.
These minor re-calibrations are bound to alter the ecology of the law school.
It will lead to a diversification of the curriculum of the different law schools, because
then they would be able to offer different subjects depending on the kinds of academic
and political interests of every law school administration. It would be a chance for
these institutions to drop the bar review center paradigm and develop more socially
relevant institutional identities. Law schools will then be known not simply for their
ability to produce bar junkies but, more importantly, for the kind of law that they
teach.
We can also expect, as a consequence of these changes, a radical transformation
in the way law is taught and thought about, a shift in the mode of production of legal
know-how. The present law teacher, stuck with the bar examinations, has his eyes
fixed on doctrines and areas of law that constitute fertile ground for bar examination
questions. Take away the demands of the bar examinations and he will be left
without a foundation, and possibly stunned by the immensity of the creative space
he now has. He will be nudged into reorganizing his syllabus, sheepishly inserting
materials he heretofore considered esoteric, unnatural, and probably even radical.
His recitation cards will now become an embarrassment, a typewriter in the age of
computers. He might even rethink the need for recitations; after all, what is the
point in relying on natural memory in the era of flash disks and laptop computers?
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The needed skills of the new regime will be creativity and the ability to access
needed information. Law will then be about conversations, and no longer re-citations.
Such an altered mode of information exchange between students and faculty has a
strong potential for reducing illegitimate hierarchies, the traditional source of injustice
in law schools.
The enhanced freedom in law schools means they will be able to design their
curriculum along inter-disciplinary lines, that they can now hire even non-lawyers to
teach courses that heavily affect the operation of law or provide important insights
on its development. There will probably be a greater demand for lawyers teaching
law to engage in scholarly studies and concentrate on research, paving the way for
the emergence of a legal academy conversant in the language of the social and physical
sciences, maybe even driven to creativity by a publish or perish culture. It will
open the possibility for a legal academy composed of human beings fixated with the
life of the mind and how such form of life spills over to others in the larger community.
The students, freed from the task of memorizing, can now immerse themselves
in the social projects of the law schools, giving them the chance to theorize the
relevance of what they are studying to both the practical, immediate concerns of
their community and the larger task of nation-building. They can now start delving
deeper into their special interests whether it is any of the various kinds of practice,
academic work, adjudication, or public governance. They can now participate in a
world of law that is grounded, engaging, intellectually fulfilling, and socially relevant.
And hopefully, apart from just learning the techniques of law, they will likewise
develop a sense of justice.

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